The village square is empty. There you are, soapbox in hand, ready to climb atop and harangue the throngs with your opinions, your call to action. And there’s nobody there. They no longer have to be, as they’re busy on Facebook, or the twitters, or checking their Instagram and Snapchats.
Does that mean the First Amendment demands you be given equal access to the web? After all, if you’re not on it, you can’t be heard. Your voice may not be silent, but your words fall on empty space if there’s no one to hear them. The ACLU has taken the position that equal access to the internet is a right, and the government must provide it.
In a report issued last month titled “The Public Internet Option: How Local Governments Can Provide Network Neutrality, Privacy, and Access for All,” the ACLU calls on cities to build and operate their own broadband networks.
Electricity. Water. Telephone. These services were deemed so essential to life that no one should be denied them. Of course, the homeless don’t count, and you still had to pay for them if you wanted them, but at least the infrastructure was created with public assistance and requirements. Should internet be added to the list as a public utility?
Fair access to high-quality Internet is a constitutional issue because such access is essential to our ability to access and share information, which in turn enables us to shape our political, civic, and social systems. As the internet becomes ever more central to our lives, individuals’ ability to exercise their First Amendment rights depends increasingly on access to online platforms. Unequal online access therefore means unequal power to exercise First Amendment rights.
It has become popular to characterize things we like, things we want, as “rights.” If you squint hard, it all makes enormous sense, since it’s invariably true that the internet is the new village square, the new public forum for discussion. But it was privately created, needed no government money or permission to create its infrastructure, and so exists without the largesse or permission of the politicians. Since its inception, this was considered a pretty good thing, as the folks who built it tended to believe that it was best left to be whatever mankind decided it would be.
The ACLU, however, sees it as a First Amendment deprivation. The argument is curious in that it conflates equal access with equal power to exercise First Amendment rights. You can get on the internet whenever you feel like it, but do you have “equal power” with Lena Dunham, given her Facebook friends, her Twitter followers, her blue tick and name recognition? And yet, are her political opinions more worthy than yours? (Yes, the answer is obvious. Don’t take the cheap shot.)
If you don’t want to strain very hard, you may not consider the failure of the ACLU’s rhetoric and instead embrace its claim to a new First Amendment right. It won’t be free, just as electricity isn’t free. It won’t be equal, because nobody is entitled to be heard by more people than care to listen. But it would be a monopoly owned by the government as a public utility. How does that grab you?
Enrique Armijo, an Elon University law professor, has shown that existing municipal government-run broadband networks in New York City, Chattanooga and Wilson, N.C., as well as others, require subscribers to agree to terms of service that ban speech that the government systems consider “excessive,” “derogatory,” “abusive, or “hateful.”
These obviously are content-based speech restrictions which a government may not impose absent a compelling government interest. Although a government-run system may find it appealing for various reasons to police its network to rid it of speech it considers “abusive” or “derogatory” or the like, as Mr. Armijo has explained, such speech restrictions likely contravene the First Amendment.
The ACLU does admit in its report that the First Amendment prevents “the government from targeting certain ideas or viewpoints for censorship or reduced access.” Thus, it says that municipalities running networks “must ensure that their systems offer equal, uncensored access to the full range of lawful digital content.”
The alternative fear is that private ISPs, without the need for net neutrality, will screw with our content, whether blocking or throttling, or if you prefer euphemisms, fast-tracking their preferred providers. And while this hasn’t yet happened in earnest, there’s no guarantee it won’t. If so, it would be a really big problem, and would impair the ability of new enterprises to break into the market without being crushed by the giants.
But can the government do anything right? Who are you going to complain to when the internet goes out and a civil servant answers the complaint line? On the other hand, it’s true that the First Amendment should preclude the government from using its clout to silence viewpoints if it owned the internet, subject to the categorical exceptions to free speech.
Marco Randazza, upon learning about this idea, was surprisingly supportive.
The modern ACLU sucks, but they’re not insane on this point. I’d like to see broadband as a public utility – because then the 1st Amend. would apply to its services.
— Marc J. Randazza (@marcorandazza) April 17, 2018
From a distance, this makes sense. Private ISPs and platforms are under no duty to adhere to First Amendment requirements. If they want to promote some speech and silence other, they’re fully entitled to do so. But then, if the government owned the tubes, would it not seek to tone-police the hate speech so that the free speech of the marginalized was protected without anyone saying mean things in response?
But it would violate the First Amendment, you and Marco say? Great. So sue them. Litigate it. For years. For millions. And maybe, just maybe, you will win. Eventually.
The question is whether you would rather put your trust in the government to control your access to the internet or private companies. If Facebook is the new village square, how can we have equal access if Zuck gets to push the veto button? And regardless of access, our voices will never be equal, but only as loud as we can either afford or they warrant of their own merit.
There will always be marginalized voices. The question is who gets to decide which voices they are, private enterprise, the government or those of us online?